Celebrating Pyrrhic victories

In international law, statehood means four things: people, land, effective control over a territory and sovereignty.

Three years after the Palestinians filed their original declaration to the
International Criminal Court, accepting jurisdiction in an attempt to render the
court competent for alleged Israeli crimes perpetrated in Gaza throughout
Operation Cast Lead, the court’s prosecutor, Luis Moreno Ocampo, ruled recently
that the court does not have jurisdiction because the Palestinians do not
constitute a state entity.

Ocampo’s decision certainly returns law to its
proper dimensions.

It comes on the heels a recent US Supreme Court
judgment whereby federal courts were ordered to rule on whether “Israel” can
appear as country of birth in the passport of a Jerusalem-born American citizen.
In a sense, the Supreme Court correctly acknowledged that albeit some issues may
have a disputed, political connotation, whose solution seems to lie only in
heaven, they may also have a more earthly dimension tied to the simple
application of existent legal rules.

The same is true for yesterday’s
pronouncement. The Rome Statute, the Court’s constitutional map, permits only
states to accept jurisdiction.

In international law, statehood means four
things: people, land, effective control over a territory and sovereignty, most
characteristically expressed in the ability to forge foreign relations with
third parties. The Palestinians are a people and it can be argued that the ’67
armistice lines can form grosso modo their border lines, but it is very hard to
see how they exercise control or sovereignty over this territory.

Indeed,
it can be argued that Israel as the occupying power is hindering the exercise of
Palestinian sovereignty.

Yet, because there has never been a Palestinian
state and a legitimate government which can automatically exercise sovereignty
once Israeli occupation ends, even if Israel withdraws from the Palestinian
territories, still, it is not certain that the Palestinians will be able to
fulfill the sovereignty requirement in a unifying way in both the Palestinian
Authority-controlled West Bank and the Hamas-dominated Gaza.

Although the
Palestinian Authority is the legitimate representative of the Palestinian
people, only recently, Hamas Prime Minister Ismail Haniyeh paid state visits to
Turkey, Iran and Egypt.

Given this, it is worrying that it took the
prosecutor three whole years to reach the conclusion he reached. His reluctance
for so long to just invoke the Statute’s state framework unjustifiably
transformed the case from one entailing the application of international law to
one referring to the law’s interpretation.

Thus, voices were raised among
international academia calling for a functional, teleological reading of the
Rome Statute, although international criminal law provisions are to be strictly
construed.

The fact that the prosecutor in his final pronouncement did
not align with these voices is fortunate. Yet damage was caused to international
criminal law by the development of a whole interpretational enterprise that
should not have ben sanctioned from the beginning.

Of course, the
prosecutor’s hesitation can be understood. It seems he would have preferred last
autumn’s Palestinian UN unilateral statehood bid to have succeeded, so that he
could invoke it in asserting ICC jurisdiction. His decision renders this clear.
Assertion of ICC jurisdiction is tied to Palestinian statehood and the latter to
UN acceptance of Palestine as a “Non Member State” and not to the four
aforementioned criteria.

From an international legal standpoint, this is
deplorable, since it weakens the statehood doctrinal basis. Moreover, the fact
that the “non member state” track is one that the Palestinian side is fondly
thinking of and an option that requires only intervention of the UN General
Assembly, where the Palestinians can achieve an overwhelming majority, render
the prosecutor’s pronouncement a self-fulfilled prophesy.

As such,
Ocampo’s decision constitutes a Pyrrhic victory not only for international law,
but also for Israel’s supporters as well as those who concerned about “lawfare,”
who have deplored the use of legal fora for political means. Israel’s Foreign
Ministry has already opted to welcome the decision, expressing reservations at
the same time.

But more importantly, the decision is a Pyrrhic victory
also for the Palestinians.

Behind the euphoria of a possible future
assertion of ICC jurisdiction, the opening of the Pandora’s Box of international
criminal jurisdiction looms. In the realms of the never opened Gaza
investigation, the prosecutor had already made clear that if jurisdiction was
asserted, he would examine the conduct of both sides. Eventually, Palestinians
not respecting the laws of war may equally with Israelis find themselves in the
court’s docket.

The writer is a former member of the Knesset’s Legal
Department, in charge of international and constitutional issues.